Safeguarding phone data

In calling last month for an overhaul of U.S. surveillance policies, President Obama has taken a welcome step back from the sweeping powers long enjoyed by the National Security Agency. Topping his list...

Comment

Posted Feb. 20, 2014 @ 12:01 am

In calling last month

for an overhaul of U.S. surveillance policies, President Obama has taken a welcome step back from the sweeping powers long enjoyed by the National Security Agency.

Topping his list were changes in how telephone data are to be collected, stored and used. The NSA has gathered “bulk telephony metadata” on Americans for about seven years now. The information, which includes numbers dialed and the timing and length of phone calls, can be used to help create a mosaic of individuals’ activity.

Once a supporter of the program, President Obama now sides with critics who say the government should not collect such data on its citizens. But he is asking Congress, with the help of top security officials, to decide on the best alternative.

While the choices are not ideal, asking the telephone companies to hold the data seems best. The phone companies, after all, must answer to their customers. Failing to preserve the information, as some privacy advocates suggest, could deprive the government of an important tool in tracking down terrorists.

Nevertheless, opinion is divided on how useful the telephone metadata has been so far. Lately, the evidence (or lack of it) seems to favor the skeptics. In December, a panel of legal and intelligence experts appointed by the president found that bulk phone-data collection “was not essential to preventing attacks.” Another recent report, by the nonpartisan New America Foundation, found that it played a part in only a tiny percentage of post-9/11 terror investigations; even then, it was other techniques (use of informants, e.g.) that led to arrests.

In an extensive review released last month, the Privacy and Civil Liberties Oversight Board, an independent watchdog agency, said there was not one case in which the data collection had helped stop an imminent attack. It urged ending the program.

In separate cases challenging the data collection, two federal judges have offered diametrically opposed views. Judge William H. Pauley III, of the District Court in Manhattan, declared on Dec. 17 that the effectiveness of the program was beyond dispute. But days earlier, Richard J. Leon, a district court judge in Washington, reached the opposite conclusion. “The government does not cite a single instance,” he wrote, in which bulk metadata collection either prevented an attack or helped achieve a time-sensitive objective.

The dispute will now move up the appellate ladder.

The NSA must continue to operate with some secrecy. But greater oversight is both possible and desirable. For it to be effective, much will depend on the details. In Congress, both parties are atypically split over how to proceed. But they should begin by addressing bulk phone-data collection which, at the moment, continues. Americans’ privacy interests are at stake.